Under the California Constitution, the initiative can be used for constitutional "amendments" but not constitutional "revisions"; see this post for more, including the constitutional text that strongly suggests this. Here's the California Supreme Court's explanation for why Prop. 8 is a constitutionally permissible "amendment" and not an impermissible "revision" (all emphases in original):

"[O]ur analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the 'substantial entirety' of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change." ...

From a quantitative standpoint, it is obvious that Proposition 8 does not amount to a constitutional revision. The measure adds one 14-word section to article I -- a section that affects two other sections of article I by creating an exception to the privacy, due process, and equal protection clauses contained in those two sections as interpreted in the majority opinion in the Marriage Cases. Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes that our past decisions have found to constitute amendments rather than revisions....

[As to the qualitiative prong of the amendment/revision analysis,] the numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes "far reaching changes in the nature of our basic governmental plan," or, stated in slightly different terms, that "substantially alter[s] the basic governmental framework set forth in our Constitution." ... Proposition 8 works no such fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution -- that is, "in [the government's] fundamental structure or the foundational powers of its branches." ...

Petitioners contend, however, that even if Proposition 8 does not make a fundamental change in the basic governmental plan or framework established by the Constitution, the measure nonetheless should be found to constitute a revision because it allegedly "strike[s] directly at the foundational constitutional principle of equal protection ... by establishing that an unpopular group may be selectively stripped of fundamental rights by a simple majority of voters." Petitioners' argument rests, initially, on the premise that a measure that abrogates a so-called foundational constitutional principle of law, no less than a measure that makes a fundamental change in the basic governmental structure or in the foundational power of its branches as established by the state Constitution, should be viewed as a constitutional revision rather than as a constitutional amendment. Petitioners suggest that their position is not inconsistent with our past amendment/revision decisions, on the theory that none of those decisions explicitly held that only a measure that makes a fundamental change in the state's governmental plan or framework can constitute a constitutional revision....

[But a]lthough a principal purpose of all constitutional provisions establishing individual rights is to serve as a countermajoritarian check on potential actions that may be taken by the legislative or executive branches, our prior decisions ... establish that the scope and substance of an existing state constitutional individual right, as interpreted by this court, may be modified and diminished by a change in the state Constitution itself, effectuated through a constitutional amendment approved by a majority of the electors acting pursuant to the initiative power....

[C]ontrary to petitioners' claim that a determination that Proposition 8 constitutes a constitutional amendment would represent a dramatic change in existing state constitutional principles, it is petitioners' proposal that radically would alter the long and firmly established understanding of the amendment/revision distinction embodied in the California Constitution. In basing their argument entirely on the circumstance that Proposition 8 has the effect of diminishing one aspect of a fundamental right of a group that this court has determined properly should be considered a "suspect class" for purposes of the state constitutional equal protection clause, petitioners in essence ask this court to read into the amendment/revision distinction embodied in the California Constitution a number of the distinctive elements of the state constitutional equal protection jurisprudence that have been developed and applied by this court in recent years. As we have seen, however, neither the history of the amendment/revision distinction in the California Constitution since its inception in 1849, nor the numerous cases that have applied that distinction, provide support or justification for such a radical transformation of the meaning and scope of the amendment/revision dichotomy.

That petitioners' proposal would mark a sharp departure from this court's past understanding of the amendment/revision dichotomy is further demonstrated by the circumstance that under petitioners' approach, the people would have the ability -- through the initiative process -- to extend a constitutional right to a disfavored group that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process. Thus, for example, had this court rejected the constitutional challenges to the existing marriage statutes in its decision in the Marriage Cases, and had the people responded by adopting an initiative measure amending the privacy, due process, and equal protection provisions of the state Constitution to guarantee same-sex couples equal access to the designation of marriage, that measure would be viewed as a constitutional amendment that properly could be adopted through the initiative process. But if an initiative measure thereafter was proposed to repeal those recently adopted changes to the state Constitution, that measure, under petitioners' approach, would be designated a constitutional revision, and the people would be powerless to adopt that change through the initiative process. Again, neither the history of the provisions governing the making of changes to the California Constitution, nor the many past cases interpreting and applying those provisions, support petitioners' assertion that the amendment/revision distinction properly should be understood as establishing such a "one-way street" or as mandating such a seemingly anomalous result....

In advancing the claim that Proposition 8 should be characterized as a constitutional revision rather than as a constitutional amendment, petitioners also rely heavily upon the circumstance that the measure was proposed directly by the people through the initiative process rather than by the Legislature, implying that under the state Constitution a measure proposed by initiative is more "constitutionally suspect" than would be a comparable measure proposed by the Legislature. Past California cases, however, provide no support for the suggestion that the people's right to propose amendments to the state Constitution through the initiative process is more limited than the Legislature's ability to propose such amendments through the legislative process. To the contrary, the governing California case law uniformly emphasizes that "'it is our solemn duty jealously to guard the sovereign people's initiative power, "it being one of the most precious rights of our democratic process"'" and that "'we are required to resolve any reasonable doubts in favor of the exercise of this precious right.'" The provisions of the California Constitution draw no distinction between the types of constitutional amendments that may be proposed through the initiative process as compared to those that may be proposed by the Legislature, and our past cases indicate that no such distinction exists.

I'm not sure how any of this can strike anyone as "quite correct" or, for that matter, quite incorrect, since the court is not here--and has not in any of its precedents--relied on anything but formalistic musings about the words "revision" and "amendment." Nothing in this extensive passage grounds this interpretation of "revision" in any persuasive policy. The majority has no substantive response--none--to the simple question, why isn't stripping a historically despised minority of equal protection, due process, and privacy rights a significant qualitiative change in the constitution? Whether to construe "revision" and "amendment" broadly or narrowly requires a policy choice because there is no other useful source of guidance. But the only answer the majority provides is implicit praise for the initiative process--the same process that has bankrupted the state. Where's the majority's policy defense of ad hoc, uncritical, non-deliberative mob rule? Why was the possibility of legislatively proposed revision not a sufficient check on the court in this case? "Popular sovereignty," it bears noting, was a concept that the framers of the U.S. Constitution thought best implemented, on a statewide scale, by way of deliberative conventions. Why were they wrong and 20th-century California populists right? The conclusory statement that this seems "quite correct" hardly makes it so, or even particularly persuasive as an interpretative rationalization.

The question of "revision" vs "amendment" has been raised in many other states (and according to the opinion today, which I find outrageous in its treatment of the initiative's intent, purpose and language, in California as well). For example, the question is always raised in Florida, another state which until recently had a similarly easy initiative process. In most states, this question is at least partially answered by the "single-subject" test: if a measure affects more than a single-subject, it is deemed too broad for the initiative process. The underlying concept is to avoid "logrolling," which is the inclusion of unrelated measures in an effort to boost the vote to a majority. Most of the initiative states have a single-subject test, and thus don't get to the express revision/amendment question. But the principles are the same.

And I agree with Prof. Volokh on his analysis of this point. In Florida, for example (I use that state because it has just as rich a legal analysis of initiatives as California), the general tests are:
1) does the amendment affect more than one section of the Constitution?
2) does the amendment affect more than one level of government (local vs state)?
3) does the amendment perform the functions of more than one branch of government (executive/judicial/legislative)?
See, for example, the Everglades Sugar Fee, which was deemed to have created a fourth branch of government by taxing specific land uses, and providing for a new agency to use the funds for a particular purpose.
The Court here properly viewed Prop 8 as an amendment because it was specific to what it did, and did it in a fashion which was limited in scope and operation.

Stephen Clark:
the initiative process--the same process that has bankrupted the state.

Right, the refusal of the state government to constrain spending in the least, rampant illegal immigration, unchecked state employee unions, high tax rates and heavy regulation chasing the productive out of the state, and refusal to license exploration and drilling of abundant natural resources have nothing to do with it. Just those mean ol' voters passing initiatives.

I'm not sure how any of this can strike anyone as "quite correct" or, for that matter, quite incorrect, since the court is not here--and has not in any of its precedents--relied on anything but formalistic musings about the words "revision" and "amendment." Nothing in this extensive passage grounds this interpretation of "revision" in any persuasive policy.

Perhaps because the Court is neither authorized nor competent to ground its interpretation of the distinction in any "persuasive policy."

Plausible, but the single subject rationale is nowhere to be found in the court's interpretation of the California provision. And it isn't the only plausible rationale.

In particular, it doesn't fit well with the court's view that a quantitatively narrow measure can constitute a "revision" because of its qualitative impact alone. If the court wants to change its interpretation, that's its prerogative. But it ought to be honest about it. To say that limiting the rights of criminal defendants to federal standards was qualitatively significant enough to constitute a "revision" but that limiting the equal protection, due process, and privacy rights of gays and lesbians is not is simply not credible.

Then what should the court ground its decision in? You failed to quote the other relevant part of my comment: There is no other source. There's no evidence of intent. The court faces a naked provision with two words "amendment" and "revision," that are amenable to a range of permissible interpretation. Although conservatives like to pretend that judging is purely mechanical, sometimes a judge runs out of source material and confronts a policy choice. Pretending that the court isn't facing a policy choice does not mean the court isn't making a policy choice.

The court went too far in limiting the sort of initiatives that constitute revisions. Werdegar's concurrence (in the result) stated a more coherent standard for revisions:

I reject, however, much of the majority's analysis. The majority purports to find in this court's prior decisions a definition of the term "revision" — one focused on governmental structure and organization — that categorically excludes Proposition 8 and thus avoids the daunting task of reconciling with our constitutional tradition a voter initiative clearly motivated at least in part by group bias.

* * *

The question before us then, as I would pose it, is whether Proposition 8 accomplishes a change of sufficient scope in a foundational principle of individual liberty as to amount to a constitutional revision. Certainly Proposition 8 affects the principle of equal protection. . . . Proposition 8 has not, however, in my view, by this impingement brought about such a broad change in the principle of equal protection as to amount to a constitutional revision.

"Exception[s]" to the privacy, due process, and equal protection clauses are necessarily abrogations of those clauses when they exclude suspect classes without substantive reason. If Prop 8 denied Jews the right to marry, we would immediately recognize it as an affront to basic principles of liberal governance, irrespective of its technical constitutionality. The California Supremes' ruling in this case is sensible, but it also lays bare the flat incompatibility of California's initiative-amendment process with the rule of law.

I'm no lawyer (as may be readily apparent) but it strikes me that the Court's decision that Prop 8 did not qualitatively alter the California Constitution rests largely on the Court's refusal to actually do what the proposition plainly says, i.e. to hold the 18,000 marriages as invalid.

Putting two and two: I wouldn't say that the argument rests on not invalidating the already performed marriages; i'd say that the argument rests on reading prop 8 to apply to the word 'marriage' and not the substantive rights associated with marriage.

Popular sovereignty," it bears noting, was a concept that the framers of the U.S. Constitution thought best implemented, on a statewide scale, by way of deliberative conventions. Why were they wrong and 20th-century California populists right?

Nobody knows if the people of California are right. But the people of that state have chosen to organize their government that way. Inherent in freedom -- responsibility and choice in ones own actions -- is the right to be wrong, as long as one is willing to accept the consequences of being wrong. It is because the people of California have in their freedom to govern themselves made a choide, not because the self-government choice they made was wise or right.

Perhaps you can persuade Californians to adopt a different mode of government, or to make different choices in the current mode. But it is their choice whether they wish to listen to you or not.

No, whether Californians have organized their government so as to allow an initiative in this situation is precisely the dispute that the California Supreme Court had to address. Your comment presupposes the answer to the question. My point is that the answer is utterly unclear from the mere use of the words "amendment" and "revision" in the text of the California Constitution and that to answer the question the Court had no alternative but to resort to policy analysis addressed to the relative merits of the initiative system and a consideration of whether the kinds of problems it was designed to address were present in the Prop. 8 situation.

Instead of doing that, however, the majority resorted to something lawless. In my view, the majority decided that it lacked the political will to invalidate Prop. 8 and reverse-engineered an opinion to justify that outcome, including running away from the court's own prior interpretations of the amendment/revision distinction. It also offered up a political compromise, counteracting the lawless affirmance of Prop. 8 by simultaneously giving Prop. 8 an exceedingly narrow interpretation. Rather than simply hold that Prop. 8 was an unlawful revision--as the alteration of criminal defendants' rights had been previously--the court fabricated a way to reach the next closest outcome that allowed them to declare that they were upholding Prop. 8. But the majority opinion should not be mistaken for legal reasoning.

The majority has no substantive response--none--to the simple question, why isn't stripping a historically despised minority of equal protection, due process, and privacy rights a significant qualitiative change in the constitution?

So what? Stripping a historically despised minority of equal protection, due process, and privacy rights" may well constitute "a significant qualitative change in the constitution," but that doesn't make it a "revision" of that constitution. I don't know where you get the idea that "revision" means "amendment that makes changes with really significant consequences (especially ones we don't like)." An amendment providing that the governor should be chosen by lot would have far reaching consequences (for one, it might improve the quality of California's governors), but wouldn't for that reason be a "revision" of the constitution.

Does Werdegar elaborate on his evaluative criteria regarding the 'breadth' of the change?

No. She spends most of the concurrence focused on whether the court should cabin consideration of qualitative revisions to only those initiatives that affect the structure(s) of government. She makes a thoughtful case that the court now reads into the word "revision" a categorical distinction that does not belong there.

She did not propose any explicit guideposts for making the distinction between a qualitative amendment and a revision. Her cursory analysis of Prop. 8 borrows language that's familiar to fundamental liberty jurisprudence, but doesn't develop anything resembling a test:

Proposition 8, as construed by this court, reflects the voters' rejection of one aspect of the Marriage Cases — our conclusion that the principle of equal protection requires the state to apply the term "marriage" to legally recognized same-sex unions. (Id., at pp. 855-856.) Historically, this conclusion was new. . .

Disagreement over a single, newly recognized, contested application of a general principle does not mean the principle is dead. Equal protection's continuing vitality in the present context is shown by this court's unanimous reaffirmation of its conclusions in the Marriage Cases,. . . The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions "marriages," but it does not otherwise affect the state's obligation to enforce the equal protection clause by protecting the "fundamental right . . . of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships."

I would much rather have seen 136 pages (length of majority opinion) developing criteria for making this potentially difficult distinction than wading through subject-matter distinctions. Werdegar wrote only ten pages. Apparently, Prop. 8 wasn't even a close call as she spent barely two pages disposing of the petitioner's claim.

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